Central Administrative Tribunal - Cuttack
Ravi Shankar Poddar vs M/O Railways on 26 April, 2021
OA No. 701/2014 1 CENTRAL ADMINISTRATIVE TRIBUNAL CUTTACK BENCH OA No. 701 of 2014 Present: Hon'ble Mr. Swarup Kumar Mishra, Member (J) Hon'ble Mr. T. Jacob, Member (A) Mr. Ravi Shankar Poddar, aged about 39 years, Son of Phulendra Poddar, working as Sr. Section Engineer, P.Way. in the office of Senior Divisional Engineer (Co- ordination), East Coast Railway, Sambalpur, PO- Modipara, Dist - Sambalpur, presently residing in a rented house C/o - Ramji Munda, Radhakrishna Vihar, Katardhua, Malipara, PO- Budharaja, Dist - Sambalpur
- 768004.
.......Applicant.
VERSUS
1. Union of India, represented through General Manager, East Coast Railway, Rail Sadan, Chandrasekharpur, Bhubaneswar, Dist - Khurda - 751017.
2. Chief Personnel Officer, East Coast Railway, Rail Sadan, Chandrasekharpur, Bhubaneswar, Dist - Khurda - 751017.
3. Principal Chief Engineer, East Coast Railway, Rail Sadan, Chandrasekharpur, Bhubaneswar, Dist - Khurda - 751017.
4. Additional Divisional Railway Manager, East Coast Railway, Sambalpur, PO - Modipara, Dist - Sambalpur
- 768002.
5. Senior Divisional Engineer (Co-ordination), East Coast Railway, Sambalpur, PO - Modipara, Dist - Sambalpur
- 768002.
6. Shri D. Harinadh, Senior Section Engineer (P. Way), East Coast Railway, Vizianagram, Andhra Pradesh.
OA No. 701/2014 27. Shri B. Babuji, Senior Section Engineer (Works), East Coast Railway, Lakshmipur Road, Dist - Koraput, Odisha.
8. Shri K. Nageswara Rao, Senior Section Egineer (Works)/Spl, Office of Sr. DEN (Co-ord), Waltair Railway Division, Dandaparthy, Vishakhapatnam - 530004.
9. Shri Rajesh Kumar Chaudhary, Senior Section Engineer (Est.), Office of Sr. DEN (Co-ord), Khurda Road Railway Division, At - Jatni, Dist - Khurda - 752050.
10. Shri Ranji Dhowre, Senior Section Engineer (Drg), Office of Sr. DEN (Co-ord), Sambalpur Railway Division, PO- Modipara, Dist - Sambalpur - 768002.
11. Shri Hiralal, Senior Section Engineer (P.Way), East Coast Railway. Dist - Koraput, Odisha.
12. Shri G. Sudarshan, Senior Section Engineer (Works), Office of Sr. DEN (Co-ord), Waltair Railway Division, Dandaparthy, Vishakhapatnam - 530004.
13. Shri S. Bajapayi, Senior Section Engineer (Works)/C, Office of CAO/Construction, East Coast Railway, Rail Vihar, Bhubaneswar.
14. Shri Sambhu Nath Ganguly, Senior Section Engineer (W)/Bhubaneswar, Office of Sr. DEN (Co- ord), Khurda Road Railway Division, At - Jatni, Khurda - 752050.
15. Shri B. V. S. Murthy, Senior Section Engineer (P.Way), East Coast Railway, Araku, Vishakhapatnam, Andhra Pradesh.
16. Shri Lingaraj Padhi, Senior Section Engineer (Works)/C, Office of CAO/Construction, East Coast Railway, Rail Vihar, Bhubaneswar.
17. Shri Prasanna Kumar Sahu, Senior Section Engineer (Works), Office of Sr. DEN (Co-ord), Waltair OA No. 701/2014 3 Railway Division, Dandaparthy, Vishakhapatnam - 530004.
18. Dayanidhi Pradhan, Chief Vigilance Inspector (Engg.), Office of the SDGM, Rail Sadan, Chandraekharpur, Bhubaneswar - 751017.
19. Sumit Kumar Bandyopadhyay, Senior Section Engineer (Works)/C, Office of the Sr. DEN (Co-ord), Waltair Railway Division, Dandaparthy, Vishakhapatnam - 530004.
20. Chief Operations Manager, East Coast Railway, Rail Sadan, Chandrasekharpur, Bhubaneswar, Dist - Khurda - 751017.
......Respondents.
For the applicant : Mr. S. Patra - 1, Advocate. For the respondents: Mr. T. Rath, Advocate.
Heard & reserved on :01.02.2021 Order on :26.04.2021
O R D E R
Per Mr. Swarup Kumar Mishra, Member (J) The applicant by filing this OA under section 19 of the Administrative Tribunals Act, 1985, has prayed for the following reliefs:-
(i) To set aside the entire selection proceedings held for formation of Group - B/Engg. Combined panel of AEN against 70% quota vacancy for 2009-11 and 2011-13 in Civil Engineering Department of East Coast Railway, Bhubaneswar, including the proceedings dated 16.05.2014 under Annexure A/12, after declaring those as illegal;
(ii) And be pleased to quash the memorandum dated 30.05.2014 under Annexure A - 5 and office orders issued consequent thereto for promoting the empanelled candidates, after declaring those as illegal;
(iii) And the respondents be directed to conduct the selection for formation of Group - B/Engg. Combined panel of AEN against 70% quota vacancy for 2009-11 and OA No. 701/2014 4 2011-13 in Civil Engineering Department of East Coast Railway, Bhubaneswar, afresh by making arrangements for audio and video recording of written and viva voce tests as per instructions under Annexure A-7;
(iv) And the Respondents be directed to assess the record of service of the applicant in any selections or examinations conducted for promotion only after following the rules prescribed by the Do P&T, Govt. of India, as indicated under Annexure A - 8 after considering the representation, if any made by the applicant, against the entries and grading passed in his APARs'
(v) And pass any other order(s)/directions(s) as deemed fit and proper in the bonafide interest of justice.
1. The case of the applicants as inter alia averred in the OA is that he had appeared in the written examination on 21.12.2013 and viva voce 15 & 16.05.2014 held by the respondents for formation of Group - B/Engg. Combined Panel of AEN against 70% quota vacancy for 2009-11 and 2011-13 in Civil Engineering Department of East Coast Railway, Bhubaneswar. After failing to qualify to be empanelled applicant submitted application dated 22.06.2014 under RTI seeking information with respect to the selection proceeding. The PIO vide his letter dated 15.07.2014 (Annexure A/6) supplied photocopy of applicant's answer sheet in respect of written examination. In the said RTI reply it was informed that no audio/video footage of the interview and viva voce test is available and that the applicant has secured 14.09 marks out of 25 in the assessment of his record of service.
2. The applicant further submitted that as per notification dated 13.02.2013 (Annexure A/7) issued by Respondent No. 2 on the orders of Respondent No. 1, written and viva OA No. 701/2014 5 voce testes were to be held under CCTV surveillance and directed for audio recording of viva voce tests. The applicant submitted that the Respondents neither communicated his APAR for the reporting year 2008-09 onwards nor called for any representation from him against the entries and grading passed for in his APAR as per DoPT OM dated 14.05.2009 (Annexure A/8). The applicant submitted that the entries made in APAR determined the marks allotted to them in assessment of record where out of 25, 15 marks were required to qualify, while he was allotted 14.09 marks by the selection committee. The applicant also submitted that he had score 100 out of 150 marks in the written examination and had performed well in viva voce test but selection committee only awarded 07 marks out of 25 in the viva voce test. The applicant submitted that the GM, East Coast Railway never constituted selection committee as per the provision of law under para 202.1 of the IREM Vol. I.
3. The respondents in their counter inter alia averred that in the said selection a candidate had to secure 90 marks out of 150 in the written examination, 30 marks out of 25 each in record of service and viva voce but minimum 15 marks in record of service to qualify. The applicant had scored more than 90 marks in the written test but could not secure 30 marks (including minimum 15 marks in record of service) hence he was not qualified. The applicant was allotted 14.9 in the service of record and 7 marks in the viva voce test. The respondents submitted that CPO/BBS's letter dated 13.02.2013 for holding selection under CCTV camera along with recording of audio during viva voce test was modified vide letter dated 14.02.2013 (Annexure R/1) to the effect that providing CCTV camera in interview chamber during viva voce may be kept in abeyance till further order. Accordingly the OA No. 701/2014 6 written test was conducted in camera and the viva voce test was conducted without camera and audio recordings. The respondents submitted that in the DOPT Memorandum there was no direction for communication of APAR in the case of non-gazetted staff and as per Para 8 of the Master Circular No. 28/91 (Annexure R/2) adverse remarks of non-gazetted railway servants were to be communicated in writing but since the applicant was never awarded any adverse remarks as seen from the statement prepared for viva voce test (Annexure R/3) from the year 2008-09 to 2012-13 so no communication was made to the applicant. The respondents submitted that General Manager had nominated officers PCE for setting of question papers and CBE for evaluation of answer sheets which is in accordance to para 12 of Master Circular No. 68 (Annexure R/4). General Manager vide note dated 26.02.2014, after the written test, nominated COM as 3rd member of selection committee. The three members of the Selection Committee were 1) Principal Chief Engineer (PCE), 2) Chief Personnel Officer (CPO) and 3) Chief Operations Manager (COM).
4. In the rejoinder to the counter the applicant submitted that as per letter dated 28.05.2015 (Annexure A/13), the Principal of School where the examination was conducted has stated that no such recording was done during the written examination held on 21.12.2013. The applicant further stated that as per Board's letter dated 18.08.2009 in para 1 the word government employees have been used which means all government servant irrespective of rank and profile. And as per judgment of Hon'ble Supreme Court in case of Dev Dutt versus Union of India (2008) 8 SCC 725 all entries in the APAR are required to be communicated to respective railway employees from the reporting year 2008-09. Thus due to negligence of the OA No. 701/2014 7 official respondents the applicant could not prefer any representation to modify or upgrade his APAR and as a result of which he fell short of just 0.1 marks to secure minimum qualifying 15 marks in the record of service category.
5. Learned counsel for the applicant relied on some citations including the following:
a) Hon'ble Supreme Court in Ashok Kumar Sonkar v Union of India and others (2007) 4 SCC 54.
b) Hon'ble Supreme Court in case of Dev Dutt versus Union of India (2008) 8 SCC 725.
c) CAT, Calcutta Bench in case of Shri Anup Roy versus Chittaranjan Locomotive Works.
d) Hon'ble Supreme Court in Dr. (Major) Meeta Sahai v State of Bihar & ors in Civil Appeal No. 9482 of 2019 (2019) SCC Online SC 1632.
e) Hon'ble Supreme Court in Ramjit Singh Kardam & ors. v Sanjeev Kumar & ors (2020) SCC Online SC
448.
6. Learned counsel for the respondents relied on some citations including the following:
a) Hon'ble Supreme Court in Madan Lal and other vs State of Jammu & Kashmir and others AIR 1995 SC 1088.
b) Hon'ble Apex Court in University of Cochin vs V. Vasudevan AIR 1997 SC 2083.
c) Hon'ble Supreme Court in Manish Kumar Shahi vs State of Bihar and others (2010) 12 SCC 576.
7. Heard learned counsel for both the sides and carefully gone through their pleadings, materials on record and citations relied upon by them.
8. The applicant was working as Senior Section Engineer (P.Way). He had appeared in the examination for empanelment for formation of Group B/Engg. Combine Panel of AEN against 70% quota vacancy for 2009-11 & OA No. 701/2014 8 2011-13 in Civil Engineering Department of ECoR/BBS. As per the requirement and eligibility criteria, out of total 200 marks, 150 marks was allotted for written examination. Out of the rest 50 marks 25 mark was allotted towards viva voce and the rest 25 marks were toward record of service. It was submitted by learned counsel for the applicant that the applicant was assigned 14.9 marks towards his record of service. The pleadings and materials on record and the submission of learned counsel for the parties reveal that the applicant was given 7 marks in viva voce examination. As per the requirement of the examination one candidate has to secure minimum 15 marks from out of 25 marks towards record of service. Besides that the total mark secured by one candidate in viva voce examination and the record of service should be 30 marks out of 50 marks. It was also stipulated that one candidate has to secure minimum 90 marks out of 150 marks assigned towards written examination. In the present case the applicant has secured 14.9 (towards record of service) + 7 ( in viva voce) = 21.9 marks from out of 50 marks. The limited examination was filled up from 70% quota allotted for the year 2009-11 & 2011-13.
9. It was submitted by learned counsel for the respondent that the applicant having participated in the recruitment process in question and having appeared in written and vivo voce examination is now estopped from challenging the said examination process, after he could not succeed to get the promotional post. In reply learned counsel for the applicant submits that the applicant is not challenging the actual examination process but he is challenging the selection which was done in violation of rules when the guidelines and instructions in this regard was not adhered to and not followed by the respondent department. In this regard learned counsel for the OA No. 701/2014 9 applicant further submitted that no CCTV Surveillance camera was fixed to oversee the written examination as well as viva voce examination in spite of the circular dated 13.02.2013 vide Annexure A/7. He further submitted that the selection committee was not duly constituted as the GM had only selected one member i.e. COM as seen from the averment made in page 17 of the counter and specific averment to that effect has been made by the applicant. He has drawn attention of this tribunal in this regard to the note given in Annexure A/9. It was submitted by learned counsel for the respondents in reply that the selection committee was duly nominated by GM and averment to that effect has been made in para 14 of the counter. He had selected three persons of the committee and had approved the note to the effect that committee is nominated. Learned counsel for the respondents also submitted that three person who were member of the committee were quite competent taking into consideration their experience and position in the respondent department i.e. 1) Principal Chief Engineer (PCE), 2) Chief Personnel Officer (CPO) and 3) Chief Operations Manager (COM).
10. No specific allegation has been made by the applicant to show that there has been any serious irregularity while conducting the written and viva voce examination in question. Learned counsel for the respondents had submitted that instruction regarding placing of CCTV camera was kept in abeyance for some period by pleading in their counter that CPO/BBS's letter dated 13.02.2013 for holding selection under CCTV camera along with recording of audio during viva voce test was modified vide letter dated 14.02.2013 (Annexure R/1) to the effect that OA No. 701/2014 10 providing CCTVA camera in interview chamber during viva voce may be kept in abeyance till further order.
11. After going through the averments made in the counter and materials on record including Annexure A/11, this Tribunal is satisfied that three persons have been nominated by the GM to be members of the selection committee. Besides that there is no material to show that the members of the committee were incompetent to assess the suitability of the candidates including suitability of the applicant. No malafide has been alleged against any of them. There is no allegation that any discrimination has been made by considering the suitability of the applicant vis a vis other candidates.
12. It was submitted by learned counsel for the applicant that the APARs were not communicated to the applicant in spite of instruction vide annexure A/8 dated 14.05.2009 and in spite of decision of Hon'ble Supreme Court reported in Devdutt case ((2008) 8 SCC 725) and therefore he was assigned 14.9 marks toward his record of service. If adverse entry, if any, in his APAR would have been communicated to him in time then he would have certainly got scope to give reply to the same. Learned counsel for the respondents with regard to the personal service record of the applicant had submitted that there was no adverse entry in the APAR of the applicant. It was submitted by learned counsel for the respondents that even if, for the sake of argument, the applicant is assigned full mark in the record of service by assigning 25 marks in his favour still then total mark secured by him does not make him eligible so as to get him within the zone of selected candidates since the last person selected i.e. Respondent No. 19 was assigned Sl. No. 15 taking into consideration his performance and the applicant was assigned the position at Sl. No 27.
OA No. 701/2014 1113. Whatever might have been the circumstances under which, the respondents did not communicate the relevant APARs to the applicant earlier, the respondents are under the obligation to furnish, not only the APARs having adverse entries, but also the APARs below bench mark, in view of the law laid down by the Hon'ble Supreme Court in Dev Dutt vs Union of India & others ((2008) 8 SCC
725. Therefore, the respondents are directed to communicate the below bench mark or adverse APARs of the relevant years to the applicant within a period of two months from the date of receipt of copy of this order. On receipt of APARs the applicant, if so advised, may make representation to the competent authority, who will consider the representation and pass a speaking and reasoned order to be communicated to the applicant. The entire exercise shall be completed within a period of six months. After the entire exercise is completed the applicant is at liberty to approach the appropriate forum of law for redressal of his grievances, if any
14. Accordingly the OA is disposed of with above observation but in the circumstances without any order to cost.
(T. JACOB) (SWARUP KUMR MISHRA) MEMBER (A) MEMBER (J) (csk)